India has a long legal history of religious tolerance

Pakistan is often in the news for its blasphemy laws and the arrest and persecution of people under it. How different is the case in India and why? Let's have a look.

On 27 May 1953, the Tamil reformer EV Ramaswami Naicker smashed an idol of Lord Ganesha in public at the Town Hall maidan in Tiruchirapalli.

Naicker, who was angered by Hinduism's caste system, made a speech announcing his intention to do this before breaking the idol.

Devotees outside an Indian temple. Representational Image. AFP

Veerabadran Chettiar, an offended Hindu, filed a case under two laws.

Section 295: Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years.

Section 295-A: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

The Tiruchirapalli magistrate dismissed the petition. On the first charge he said that simply because the mud figure resembled Lord Ganesha it cannot become an object held sacred.

He accepted an offence was made out on the second charge (295-A), but that law required government sanction for the case to be registered, which had not come. He dismissed that also.

The petitioner appealed. The sessions judge dismissed the appeal. He agreed with the magistrate, saying the idol was the private property of those who broke it.

The matter went to high court. The judge said the idol broken did not come within the scope of "any object held sacred by any class of persons." An idol in a temple or one in a religious procession would, he clarified, but not any object resembling a diety. Even a toy in such a shape would otherwise qualify as being sacred. No offence was made out, the judge said, and dismissed the appeal.

On to the Supreme Court. On 25 August 1958 Justice BP Sinha said the high court was wrong to have imported meaning into the words "held sacred". It was not necessary for the object to have been worshipped for it to be sacred. For instance, the Bible, Quran and the Guru Granth were also objects held sacred. Sinha asked the judiciary to be circumspect in such matters and consider the feelings and religious emotions, irrespective of whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court.

However, after making these observations, Sinha then dismissed the appeal saying the matter had become "stale" since five years had passed. What his observations did was not to set a precedent, which would have happened had the case been dismissed on merit.

Two aspects are important here. First, a tolerance for offences against god shown by India's lower judiciary. Second, and this is from Sinha, a reminder that such offences are likely to have consequences and therefore should not be encouraged.

On 20 April 1960, Allahabad High Court fined a man, Khalil Ahmad, for costs of Rs 1200 after he sued for getting his books released. He had written texts praising Yazid, the man accused of killing the Shia leader Hussain at Karbala. Ahmad said Yazid had a place in heaven, meaning that the act had religious sanction. The state then seized his books. The judges cited justice Sinha's observation in ruling against him.

There are not many cases reported of blasphemy in India. In my years as a sessions court reporter in the 1990s, I came across none, and most of the case studies in legal volumes refer to events 50 years or more ago. I would attribute this to a generally high tolerance in the population for the other's faith, and a pragmatic and alert police force and judiciary. What is different in Pakistan? We'll see that tomorrow.

Incidentally, Naicker, the idol-smasher was also the founder of the Dravidian movement that produced both of Tamil Nadu's main political parties, DMK (Karunanidhi) and ADMK (Jayalalitha). Naicker's successors converted an anti-Brahmin movement into a powerful political force that now does not seek to offend. The ADMK chief Jayalaitha is a Brahmin, and both parties are inclusive. Naicker's act is all but forgotten today, and seen as political not religious.